In a 1995 book review published in the University of Chicago Law Review, Elena Kagan (now Justice Kagan) wrote about judicial nominees avoiding disclosing their views on legal issues. She said, “[T]he safest and surest route to the prize lay in alternating platitudinous statement and judicious silence. Who would have done anything different, in the absence of pressure from members of Congress?”
This week, nominee to the High Court, Judge Amy Coney Barrett followed the “say-nothing” playbook, through injudicious and repetitious filibustering, essentially claiming that it was improper for a judge “to opine” on matters outside the judicial process.
Really? Judge Barrett “opined” in lectures, interviews, and articles as a judge as have many sitting Supreme Court Justices. Her mentor, Justice Antonin Scalia regularly made controversial declarations at law school addresses and all kinds of other public appearances.
Judge Barrett’s hours before the Senate Judiciary Committee were consistently defiant. She refused to answer questions about the legality of intimidating voters, or whether all losing presidents should commit to a peaceful transition of power. Judge Barrett even refused to say whether she accepts the science on the climate crisis because she lacks the expertise on this issue and because it is a controversial topic.
Senator Pat Leahy said, “President Trump claims he has an absolute right to pardon himself. Would you agree, first, that nobody is above the law—not the president, not you, not me—is that correct?” Judge Barrett said she agreed no one is above the law but could not answer the question about a president’s pardon powers because “it had never been litigated.”
She would not even say that a president cannot unilaterally change the date of the election. Perhaps Judge Barrett should review Article II of the Constitution which empowers Congress to choose the timing of the general election and a law enacted by Congress that requires the election to be held on the first Tuesday after the first Monday in November.
The hearings were truly a travesty. Too few hearing days, exclusion of prominent civic and scholarly critics of her record and statements, and remarkably, the defeatist position by the Democrats. Their repetitive political campaign-related focus on Roe v. Wade and access to abortions, Obamacare, and the Second Amendment was directed to the voters back home. The Republicans did their things for the elections too, led by Chair Lindsey Graham. (This is an important reason why nomination hearings should not be conducted close to elections).
It gets worse. Chair Lindsey Graham pronounced victory for the judge in his opening statement and by their behavior the Democrats largely agreed, using the occasion to share their political views without exposing how a judge’s corporatist ideology can let corporations prevail over workers, consumers, the environment, and the electoral process. Republican justices on the Supreme Court, most notoriously, in the Citizens United case opened the floodgates to corporate cash further corrupting our elections.
As constitutional law expert, Bruce Fein noted, Judge Barrett maintained no distance between her and her nominator, President Trump, who stunningly has said, “I have an Article II, where I have the right to do whatever I want as president.” As a presidential tyrant, Trump knew how to choose a judicial nominee who is not likely to reject tyranny.
Except for Senator Sheldon Whitehouse (D-RI), the Democrats, as they have in previous Supreme Court nomination hearings, declined to question Judge Barrett about rampant corporate crime, and corporate personhood harming all Americans. Corporate power and control are scraping the rule of law with worsening brazenness, privileges, and immunities.
A 6 to 3 corporatist court will install an era of corporate supremacy over real people that has no foundation in our Constitution. There is no mention, whatsoever, of the words “corporation” or “company” in the Constitution, the juridical foundation of our republic. Treating corporations as artificial entities—as “persons” is based on a headnote in the 1886 Supreme Court case, Santa Clara County v. Southern Pacific Rail Road. The headnote that was not even part of the Court’s opinion. This judicial unfortunate and legally suspect twist has been relied on and expanded by generations of corporatist Supreme Court Justices.
Senator Whitehouse went to the root of the choice of Judge Barrett. It’s about power by the few over the many. The long-driven goal of the Koch brothers and the Bradley Foundation.
The Democratic Party should have avoided all these losing nomination battles over Trump’s, Neil Gorsuch, Brett Kavanaugh, and now Amy Barrett. How? By handily winning half a dozen Senate seats in 2016 and 2018 that they botched big time. They even lost seats of sitting Senators Heidi Heitkamp (D-ND), Claire McCaskill (D-MO), and Bill Nelson (D-FL) the latter to then-Governor Rick Scott. Rick Scott, prior to being governor, was the CEO of Columbia/HCA which under Scott engaged in one of the largest Medicare frauds in history. The federal government fined Columbia/HCA $1.7 billion for this outrageous behavior.
In their own ways, these senators tried to be Republican-lite by avoiding front-burner issues such as higher minimum wages, law and order for corporate outlaws, full Medicare for All, and the creation of good community-based jobs to rebuild our crumbling infrastructure. These and other much-needed programs could be paid for by restoring corporate taxes to the level they were in the more prosperous nineteen sixties.
Because of the two-party duopoly, our country has been cornered with the “choice of the lesser of two evils” as both parties were dialing for the same corporate/commercial campaign dollars. In 2016, Bernie Sanders showed that big amounts of money can come from many small donors. The Democrats are outspending the Republicans in many races, but more than money is needed to win elections. What’s their excuse for letting the worst Republican Party history win, again and again, control the Congress with one or both Houses, and entrench their clenched-teeth judges for decades?
Look in the mirror Democrats. Start self-examining why collectively you’ve let the American people down? It’s time for the rising movement of elected and grassroots progressive to take over.
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Ralph Nader is a consumer advocate, lawyer, and author. His latest books include: To the Ramparts: How Bush and Obama Paved the Way for the Trump Presidency, and Why It Isn’t Too Late to Reverse Course, How the Rats Re-Formed the Congress, Breaking Through Power: It’s easier than we think, and Animal Envy: A Fable.
